4 Del. 562 (Del.Oyer.Ter. 1845), State v. Thawley

Citation4 Del. 562
Opinion JudgeBooth, Chief Justice .
CourtCourt of Oyer and Terminer of Delaware

Page 562

4 Del. 562 (Del.Oyer.Ter. 1845)




Court of Oyer and Terminer of Delaware.

April Term, 1845

Dying declarations; when admissible.

The state of the deceased's health at the time of the injury, is evidence.

His character as a violent man, is not evidence.

Kent, April term, 1845. Indictment, murder of Waitman Vickery.

The deceased lived about nine days after receiving a blow on the head from the defendant. On the day he was struck, and every day afterwards, until he became insensible, he said he should die. His declarations as to the cause and extent of the injury were offered and objected to, as not being made under the perfect conviction of a dying state; and as not being competent to prove that the blow was the cause of death.

The Court, ( Milligan dissenting,) admitted these declarations as dying declarations; though they said that as to the wound being the cause of the death; and also as to the condition of the deceased at the time of the declarations, they would be open to remark before the jury, in connection with general evidence of his intemperate habits, and low state of health. ( Ros. Ev. 32; Mosely's Case, 1 Moo. Cr. Ca. 97, a .)

The defence set up was, that the blow was struck in self-defence; and a witness was asked whether the deceased was not a violent man, and in the habit of attacking others with dangerous weapons?

It was objected that the character of the deceased was not in issue, and, after argument-

The Court, ( Harrington dubitante) rejected the evidence.

Booth, Chief Justice .

The testimony offered is the general character of the deceased as a violent man. From the fact, that we cannot find any case in the books, where this evidence has been admitted, nor any principle which would admit it, we feel constrained to reject the evidence. We do not see how the character of the deceased as a quarrelsome or fighting man is in...

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